The North Dakota Supreme Court faces a complex decision in the matter of criminal penalties for refusal to submit to field or chemical testing in potential DUI cases. Two October 2013 cases took center stage in the court's deliberation as attorneys for two defendants charged with DUI argued that the state's new laws go against the fourth amendment. The fourth amendment of the United States Constitution states that citizens should not be subjected to unreasonable search and seizure.
The first case involved a routine traffic stop in which the defendant took a voluntary breathalyzer test (PBT), which is inadmissible in a trial by jury. The PBT showed a blood alcohol content of 0.254, which is considerably higher than the legal limit of .08. The defendant refused to take a chemical test for further analysis and was taken into custody and charged under the new state law that imposes penalties such as jail time for this type of refusal.
The second case involved a man who was pulled over on Interstate 94 after an officer observed that his vehicle was swerving. After consenting to multiple field sobriety tests as well as a PBT, the man was taken into custody and refused a chemical test. Attorneys for both cases argued that their clients were exercising their fourth amendment right not to submit to unreasonable search without a court-ordered warrant.
The defense attorneys have also cited the U.S. Supreme Court case of McNeely v. Missouri, which set a relevant precedent for cases in which blood tests are administered against the will of defendants. The Supreme Court determined that such testing is invasive and thus constitutes unreasonable search and seizure. Attorneys in both North Dakota cases argue that the McNeely v. Missouri ruling is relevant because imposing criminal penalties on those refusing tests is coercive, and the tests are unreasonable.
Source: Park Rapids Enterprise, "ND Supreme Court weighs the legality of criminal penalties for DUI test refusal", October 13, 2014